D.C. Dist. Ct. Upholds Disclosure Requirements for 'Issue Advocacy'

By Mark Wilson, Esq. on October 13, 2014 | Last updated on March 21, 2019

The Independence Institute, a Colorado nonprofit, wanted to run a radio advertisement before the November 4 election. The ad urges the two U.S. senators from Colorado to support the Justice Safety Valve Act. Not really a problem, except that Independence Institute didn't want to have to disclose the contributors to the communication, as required by (what's left of) the Bipartisan Campaign Reform Act (BCRA).

Judge Colleen Kollar-Kotelly of the U.S. District Court for the District of Columbia was having none of it and ruled against Independence Institute.

Trying to Move the Goalposts

"Issue advocacy" involves attempting to get voters to vote some way on a particular issue without naming candidates; "express advocacy" urges voters to vote for or against a specific candidate. Citizens United tried to get the court to exempt from disclosure requirements any electioneering communications that weren't express advocacy because the Court had previously upheld restrictions on independent expenditures to apply only to express advocacy. But the Supreme Court, in Citizens United v. FEC, refused to consider that argument. How clear could it have been? "We reject this contention," the Court said.

In spite of that fairly clear language, Independence Institute offered a bunch of really unconvincing reasons why the district court shouldn't pay attention to it. Notably, Independence Institute claimed that it (unlike Citizens United) was a 501(c)(3) organization and it made no positive or negative references to a candidate. It also said that the issue advocacy discussion in Citizens United was dicta.

This court was unconvinced. First of all, tax status was wholly irrelevant. So is whether the ad is issue or express advocacy, or whether the ad contains positive or negative references to a candidate -- again, because Citizens United didn't draw a difference. And that discussion in Citizens United wasn't dicta because "its refusal to import the express advocacy limitation to the disclosure context was not dicta but a holding" -- a holding that was signed onto by eight justices.

Alternate Theories

Even though it was a losing battle, Independence Institute still maintained that Buckley v. Valeo and McConnell v. FEC support its claim that disclosure requirements should apply only to express advocacy. It's true that Buckley separated issue and express advocacy, but it did so only because, without it, the statute would have been unconstitutionally vague. The statute at issue in Buckley has been superseded by the current BCRA, which is different from FECA in Buckley. Oh, and McConnell even said that all of the same "important state interests" that applied to FECA apply just as much to the BCRA.

Finally, Independence Institute tried to argue that the Court's striking down of a ban on expenditures for issue advocacy should extend to striking down the disclosure requirements for issue advocacy -- but as you might expect, the district court noted the difference between expenditures and disclosure, a difference that political organizations are desperately hoping courts don't notice.

Creative lawyering, to be sure, but not creative enough to overcome Citizens United's fairly clear statement that disclosure is the rule, no matter what.

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